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By May Winfield, Associate Director, BuroHappold Engineering

BIM - A Legal Minefield ?May Winfield, Associate Director, BuroHappold Engineering

Whilst BIM technology has been around for some years, this movement of UK BIM started with the UK Government’s 2011 Construction Strategy which mandated that centrally procured Government projects would use BIM Level 2. This mandate came into force in April 2016. Scotland put into force its own similar mandate which came into force in April 2017, one year after the UK Government mandate. The UK is regarded a world leader in this area and the prevailing UK BIM standards are being turned into an equivalent suite of ISO standards, the BS EN ISO 19650 suite.

Common Issues/Potential Disputes

A. No meaning of ‘Level 2’

There remains no commonly understood, legal or standardised contractual definition of “Level 2”. Despite this, it is not unusual for tender documents and contracts to contain a simple requirement to “achieve BIM Level 2” or “do BIM” or similar. The potential for differing expectations and understanding, given the lack of settled defined terminology, seems obvious.

The new BIM standards, BS EN ISO19650-2:2018, replaces “Level 2” with different terminology but these are equally undefined. Will parties remember to include definitions and detail what is expected – or will we remain in the murky world of “doing some BIM”?

B. Lack of clarity of specifications/requirements

Using BIM in a project can consist of a significant number of different processes and formats. If there is a lack of relevant or appropriate specifications/requirements, is there a possibility that the BIM models and data received will not be in the format or have the content that is of the most use to the Employer?

There are similar issues down the supply chain. From the main contractor’s perspective, it is important that its supply chain complies with its intended processes and data content/ format but are these important requirements included in the binding contractual documents? If not, could the supply chain conceivably refuse to comply during the course of the project without additional payment or limitations of liability?

"The benefits of BIM from a process, time, costs and collaboration perspective have been widely reported, and move our industry closer towards the aims of the Egan, Latham and Farmer Reports"

C. Responsibility for Data

By their nature, BIM processes require regular exchange of data and information between the design team as the design and BIM models develop. This data may be more comprehensive than in a non-BIM project as BIM models may be populated with more data/content than a 2D drawing which can be prepared to just show the elements of the design which are ready to be formally issued.

Could this give rise to various potential issues of design responsibility and should such issues be clarified or mitigated within the contract terms? For example:

• What is the extent of a designer’s responsibility to check the models/data that they have received?

• In the absence of express limitations or exclusions, what is the extent of a designer’s responsibility for the incomplete or unchecked data contained within an issued BIM model?

See more: Top Legal Technology Companies

D. Copyright

Contracts will generally contain terms about copyright in design, and increasingly, in BIM models. However, do contracts deal with the copyright of the data and objects in the BIM models and data produced from the BIM models sufficiently or event at all? This needs clarity not least because the copyright in the respect elements may sit with different parties.

E. Insurance

It seems sensible for parties to check with their brokers/insurers that their intended use of BIM does not cause any issued under their policy. For example, a BIM-specific role such as a BIM Co-ordinator or BIM Information Manager. The government is currently piloting a new form of insurance model, integrated project insurance, to facilitate a more collaborative relationship between the project team.

BIM in Standard Form Contracts

The main standard form contracts in the UK take one of two approaches as regards BIM. This being to either place all the substantive terms in a separate schedule or “Protocol” (the approach of the JCT) or placing the substantive terms within the body of the contract itself (the approach of the NEC). For more discussion on this, readers are directed to the Winfield Rock Report on the UK BIM Alliance website.

Where is Some Guidance?

A BS EN ISO19650 Guidance Framework is available in 2 parts on the UK BIM Alliance website. The writer is in the process of leading a team preparing a template BS EN ISO19650-compliant ‘BIM Protocol’ for use in BIM projects’ contracts. Whilst awaiting the Protocol, those readers using the JCT may find the JCT Practice Note on BIM, issued in late May 2019, helpful.

Final Thoughts

The benefits of BIM from a process, time, costs and collaboration perspective have been widely reported, and move our industry closer towards the aims of the Egan, Latham and Farmer Reports. However, as with all new innovations and developments, it comes with uncertainties, differing understandings and a lack of settled legal principles. These are not insurmountable but ignoring them is like sitting on a ticking time bomb – until the dust settles with established processes, principles and understandings, we may need to veer towards more detail in documents than we would for more common and established issues of our industry.

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